Hoppy’s Commentary for Thursday

The Obama Administration stepped into a mine field with its decision to implement a policy under the new health care law that will require Catholic schools, hospitals and other church-related organizations to provide coverage for birth control (including the morning after pill) in their health insurance plans.

Catholic leaders are outraged, believing that the federal government is exceeding its authority by essentially forcing the church to violate one of its primary tenets.   Wheeling-Charleston Diocese Bishop Michael Bransfield released a statement saying the ruling, “unnecessarily intrudes upon rights of conscience.”

“Even those who are not in agreement with the Catholic Church’s teaching on the sanctity of human life recognize that this is a radical break with the tradition of religious liberty and respect for conscience rights,” Bransfield said.

The Obama administration, stung by the criticism from a core constituent group, has tried to tamp down the controversy.   White House spokesman Jay Carney said that the administration wants to work with religious organizations “to see if implementation of the policy can be done in a way that allays some of those concerns.”

Although this is a new fight between this administration and the Catholic Church, it’s just the latest in a long history of struggles over the meaning of the First Amendment’s protection of the free exercise of religion.

Over time, the pendulum has swung both ways on this.

For example, the U.S. Supreme Court decided against the Mormon Church in 1879 when it argued in defense of polygamy as a practice fundamental to the religion.  In 1986, the high court ruled against an army psychiatrist who, as an Orthodox Jew, said his religion compelled him to wear a yarmulke while on duty.

These and other cases show that the Constitutional protection of religious liberty does have limits.

However, the Supreme Court has also protected religion from government intrusion.

The Amish won an important decision for religious liberty in 1972 when the Supreme Court said Wisconsin’s law forcing Amish children to attend school until they were 17 was unconstitutional. The Alaska Supreme Court ruled in 1979 that the state’s hunting laws did not apply to Athabascans whose hunting and killing of moose is central to their religion.

Through all these decisions, however, the primary test is whether the practice in question is central to the religion and sincerely held.  In the current dispute, there is little doubt that birth control and abortion are antithetical to deeply-held Catholic beliefs and tradition.

As Alexander Sample, the Bishop of Marquette, wrote, “We Catholics will be compelled to either violate our consciences, or to drop health coverage for our employees and suffer the penalties for doing so.”

The Catholic Church wants an exemption, and it should get one.

Religious freedom, like all the God-given freedoms enumerated in the U.S. Constitution, has its limits.  The government can, under certain circumstances, regulate behavior associated with religious practices.

But as Constitutional scholar Professor Michael McConnell has said, the “free exercise” of religion contemplates exemptions from the law as long the religious activity does not harm the public peace or the rights of others.





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